Federal Court Orders Compensation For Christmas Holiday Work Breach

The recent Federal Court decision in Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372 (11 November 2025) sheds light on whether employees can be required to work at Christmas under section 114 of the Fair Work Act 2009 (Cth) (FW Act). The ruling required BHP's in-house labour hire company, OS MCAP Pty Ltd (OS MCAP), to compensate 85 production employees after unreasonably forcing them to work over the Christmas holidays without providing a reasonable right of refusal.

Relevant Provisions

Section 44 prohibits employers from breaching the National Employment Standards.

Section 114(1) provides employees with an entitlement to be absent from work on public holidays unless sections 114(2) and 114(3) apply:

1. Section 114(2) allows an employer to request an employee to work on a public holiday if the request is reasonable.
2. Section 114(3) provides that a employee may refuse if the refusal is reasonable.

Section 114(4) sets out the factors relevant to whether an employer's request for an employee to work on a public holiday-or the employee's refusal of that request-is reasonable. These factors include:

1. Nature of the employer's business and operational requirements, and the nature of the work performed by the employee.
2. Employee's personal circumstances, including family responsibilities.
3. Whether the employee could reasonably expect to be asked to work on the public holiday.
4. Whether the employee is entitled to overtime, penalty rates, or other compensation, or receives a level of remuneration that reflects an expectation of working on public holidays.
5. The type of employment (e.g., full-time, part-time, casual, shift work).
6. The amount of notice given by the employer when making the request.
7. For refusals, the amount of notice given by the employee when refusing.
8. Any other relevant matter.

Facts

The Mining and Energy Union (the Union) brought proceedings against OS MCAP for contravening sections 44 and 114.

The proceedings centred on OS MCAP requiring employees to work on public holidays, specifically Christmas Day and Boxing Day in 2019, without making a reasonable request as required under the FW Act.

The Federal Court had previously dismissed the Union's claim in 2022, but the Full Court overturned this decision in 2023, declaring that OS MCAP had contravened section 44 by breaching section 114. The Full Court held that OS MCAP's actions constituted a requirement, not a request, and therefore breached section 114. The Full Court made the following useful observations about the operation of section 114:

1. the requirement that there be a "request1q rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal;
2. the legislation intends to ensure that employers do not require employees to work on public holidays absent the request being reasonable or the employee being able to refuse to work in reasonable circumstances; and
3. a breach of section 114 does not occur at the point of the request or requirement but rather at the point when, contrary to s 114(1), the employee has to work on the public holiday.

The case was remitted to the primary judge to determine the appropriate remedies and penalties. The Union sought compensation for economic and non-economic loss for 85 affected employees and a penalty to be imposed on OS MCAP.

Decision

Justice Rangiah determined:

1. Economic Loss - The employees did not suffer any economic loss as a result of the contraventions. It determined that their annual salaries were higher than what they would have earned under the Black Coal Mining Award 2010 - even if they had worked up to ten public holidays in a year. The court concluded that these salaries fully compensated the employees for working on public holidays, including Christmas Day and Boxing Day.
2. Non-economic Loss - OS MCAP was required to pay compensation to the employees for its contraventions of sections 44 and 114 of the FW Act because the employees had been deprived of the opportunity to refuse to work on the public holidays, which constituted non-economic loss. The compensation for non-economic loss awarded to the employees ranged from $800 to $1,700 depending on individual circumstances. The court considered evidence from seven employees in relation wanting to spend Christmas Day with their families and the emotional impact of not being able to do so. The court accepted this evidence and awarded these employees additional compensation for non-economic loss as a result.
3. Serious Contraventions - OS MCAP was required to pay a pecuniary penalty to the Union of $15,000 for its contraventions of sections 44 and 114. The contraventions were deemed as more serious based on factors such as the number of employees affected, the protracted nature of the contraventions, and the involvement of senior management.

Takeaways

The decision provides important following reminders to employers:

1. Requests, not requirements – Employers must make a reasonable request for public holiday work, not impose it. Where an employee refuses consideration will need to be given to the reasonableness of that refusal having regard to their personal circumstances.
2. A Court declaration can be sought in advance – The Court held that the safer course would have been for OS to seek a declaration as to whether it was entitled to require the employees to work on Christmas Day and Boxing Day. This could be an option for employers who need certainty about whether it is entitled to require employees to work on those days.
3. Reasonableness matters – Whether a request by an employer, or a refusal of a request by employee, to work on a public holiday is reasonable depends on a number of factors. One of these factors is the nature of the employer's workplace or enterprise. For example, an employee's refusal to work on a public holiday may not be reasonable if they are employed by an employer which needs to operate on public holidays.
4. Notice – The more notice that an employee is given of the need to work on Christmas Day and Boxing Day, the more likely that it will be considered reasonable

Contributor

Angus Dowey, Lawyer

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.